Citation Nr: 1806774 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-18 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for hallux valgus as secondary to service-connected hammer toes with calcaneal spurs. 2. Entitlement to service connection for a bilateral foot disability, other than hallux valgus and hammer toes with calcaneal spurs. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to July 1994. He also had a period of approximately 7 months of prior service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating action of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This case was previously before the Board in May 2010, October 2013, March 2016, and March 2017 when it was remanded for further evidentiary development. FINDINGS OF FACT 1. The competent medical evidence is at least in equipoise as to whether the Veteran's bilateral hallux valgus is, at least in part, caused by his service-connected hammer toes with calcaneal spurs. 2. The Veteran's pes planus was not shown at separation from his first period of service and was noted on entrance of his second period of active service. 3. The weight of the probative and competent evidence indicates that the Veteran's bilateral foot disability was not incurred in, aggravated by, or otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hallux valgus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. The requirements to establish service connection for a bilateral foot disability, other than hallux valgus and hammer toes with calcaneal spurs have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2017); see also Walker v. Shinseki, 708 F.3d 1110, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1113, 1132, 1137 (2012). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran seeks service connection for a bilateral foot disability. The Veteran has been diagnosed with pes planus, calluses, bunions, and hallux valgus and degenerative changes of the first metatarsal joint. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether current foot conditions are related to service. The Veteran had two periods of service. His first period of service was approximately seven months. The only medical records from this period are a June 1969 separation report of medical examination and corresponding report of medical history. The Veteran denied foot trouble. Clinical evaluation of the Veteran's feet revealed no abnormalities and they were assessed as normal. The Veteran's second period of service was from June 1974 to July 1994. His June 1974 report of medical examination at induction noted that the Veteran had slightly flat feet. No other foot abnormalities were noted and the Veteran was found fit for full military duty. The Veteran's service treatment records throughout his second period of service contain numerous treatment records and reports of medical examination noting the existence of the Veteran's bilateral pes planus. With regard to other foot conditions, a March 1978 treatment record indicates that the Veteran was assessed with a corn on his right fourth toe, which was treated with salicylic acid. On an October 1989 report of medical history the Veteran endorsed foot trouble, which he described as pain in both feet. An October 1990 treatment record notes that the Veteran had right great toe irritation secondary to a long toenail on his 2nd toe. On his March 1994 report of medical history the Veteran endorsed foot trouble, which he described as stiffness and pain in both feet. He did not report any other foot problems or symptomatology. His March 1994 report of examination at retirement indicates that clinical evaluation of the Veteran's feet revealed pes planus. No other abnormalities were noted. His service records contain no other references to complaints of, treatment for, or diagnoses related to corns. Additionally, immediately preceding his discharge, the Veteran stated that there had been no change in his medical condition since his March 1994 separation examination. At a June 2004 VA examination, the Veteran reported that he had calluses on his feet since approximately 1990 and that after his discharge from the military he also began to develop bunions. The Veteran was diagnosed with plantar calluses, pes planus which was noted to be stable, hallux valgus, and bunions. X-rays revealed degenerative changes of the first metatarsal. The examiner did not opine whether the aforementioned diagnoses were related to or aggravated by the Veteran's military service. At an October 2006 VA podiatry appointment, the Veteran reported that his calluses had begun growing in the couple years before his military discharge. At his December 2009 hearing, the Veteran testified that he was given inserts for arch supports and had to buy bigger boots during service because of his hammer toes. He noted that got calluses and bunions because his feet slid in his boots. At a June 2011 VA examination, the Veteran reported that his pes planus had existed since 1994. He denied any injury or trauma to his foot. The examiner confirmed that pes planus was present, and also noted that the Veteran had slight hallux valgus. The examiner opined that it would be difficult to opine whether the Veteran's pes planus was aggravated by an in-service event, injury, or disease. With regard to the Veteran's hallux valgus, the examiner opined that it was likely that the Veteran's hammer toes and pes planus had caused hallux valgus over time due to the Veteran's abnormal weight bearing secondary to the Veteran's compensation for pain. In a November 2013 opinion, a fee basis podiatrist opined that the Veteran's pes planus, which was noted on entry to his second period of service, was not aggravated beyond its natural progression by service. The podiatrist explained there was insufficient medical evidence to link the Veteran's current pathologies to aggravation beyond the normal progression. With regard to the Veteran's early degenerative changes of the feet, she stated that radiographic analysis suggested that the degenerative changes were in the early stage of degeneration and as such, they did not represent a chronic condition. In May 2017, a VA clinician opined that it was less likely than not that the Veteran's pre-existing pes planus underwent a permanent worsening during service. The clinician noted that the Veteran's June 1969 report of medical examination at separation from his initial period of service was negative for complaints, diagnosis, treatment and/or events related to pes planus construct, joint pain, foot trouble, bone, joint or other deformity, or arthritis or rheumatism. Therefore, it was less likely than not that the Veteran's pes planus was in any way related to his first period of service. With regard to his second period of service, she noted that during service the Veteran was treated for corns with salicylic acid pads. However, she observed that Veteran's December 1978 report of medical history and report of medical examination were negative for any foot trouble or observations regarding the Veteran's pes planus architectural construct. A January 1984 report of medical examination observed that that the Veteran had pes planus. While there were no complaints, injury, or events related to his pes planus or foot trouble, the Veteran was provided with arch supports as he had previously been seen in March 1982, March 1983, and April 1983 for intermittent ankle, leg, and low back pain, as well as symptomatology regarding his hammer toes. The clinician further noted that that Veteran's October 1989 report of medical history and medical examination noted bilateral foot pain and observed the continued presence of pes planus. However, there was no reference to the pathology or cause of the foot pain. The Veteran's March 1994 report of medical examination and report of medical history at retirement indicate that he reported occasional stiffness and pain in his feet. While the examiner observed the continued presence of pes planus, no pathology was noted. She opined that it was less likely than not that the Veteran's pre-existing pes planus foot construct underwent a permanent worsening during service, versus temporary exacerbation of his symptoms, based on the lack of objective, podiatric and/or orthopedic based evidence to suggest a chronicity and continuity of complaints, treatment, injury or events related to the Veteran's pes foot architecture. With regard to the arch supports provided to the Veteran, she opined that collectively, the Veteran's active duty records lacked any correlating biomechanical evidence to suggest a nexus between his in-service prescription for orthotics and his pes planus foot construction symptoms. She noted that the Veteran had been seen multiple times for ankle, leg, and back pain and had decreased his running and walking secondary to his chronic lower back and knee pain. Accordingly, it was her opinion that the orthotic prescription was correlated with the complaints of low back and knee pain while exercising, and was not related to his pes planus. In closing, the clinician again opined that based on the evidence of record, including the Veteran's lay statements, it was less likely than not that the Veteran's pes planus underwent a permanent worsening during service. In a June 2017 addendum opinion, the May 2017 VA clinician noted that she had reviewed claims file, the current medical literature, the Veteran's lay statements, as well as the additional private medical evidence that had been received from the Ankle and Foot Centers. She noted that the Veteran had diagnoses of plantar fascial fibromatosis, and 1st metatarsophalangeal joint hallux valgus. She again acknowledged that the Veteran's report of medical examination at induction to his second period of service indicates that he had mild pes planus foot architecture. She stated for the reasons discussed in her March 2017 opinion, even considering the additional evidence, it was her opinion that the Veteran's pes planus foot construct had remained consistently mild over time and that it was less likely than not that it had been aggravated by the Veteran's military service. With regard to the Veteran's first metatarsophalangeal joint condition, bunions, and plantar fascial fibromatosis, the clinician noted that the Veteran's service treatment records were silent for any complaints, diagnosis, treatment, injury, or events related to these conditions during service as were post-service treatment records dated during the presumptive period following the Veteran's retirement. The clinician opined that in light of the relevant evidence, it was less likely than not that the Veteran's current foot conditions, to include pes planus, first metatarsophalangeal joint, bunions, and plantar fascial fibromatosis, were related to or aggravated by the Veteran's military service. In September 2017 the Veteran was provided a VA examination for his bilateral hammer toes. The examiner noted that the Veteran was also diagnosed with inter alia hallux valgus, but opined the condition was unrelated to the Veteran's service-connected hammer toes. After reviewing the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that his bilateral hallux valgus is causally related to his service-connected hammer toes with calcaneal spurs; nevertheless, his other bilateral foot disabilities were not incurred in, aggravated by, or otherwise related to active service. With regard to the Veteran's hallux valgus, the Board acknowledges that there is conflicting evidence regarding whether the condition is related to the Veteran's service-connected hammer toes. The June 2011 examiner opined that it was at least as likely as not that the Veteran's bilateral hallux valgus was caused by his service-connected hammer toes and non-service connected pes planus. The examiner explained that the Veteran's hammer toes had caused the hallux valgus over time due to the Veteran's abnormal weight bearing that was secondary to his compensation for his hammer toe pain. In contrast, the September 2017 examiner opined that the Veteran's hallux valgus was not related to the Veteran's hammer toes. Nevertheless, the September 2017 examiner provided no rationale in support of her negative opinion. Accordingly, the September 2017 is afforded less probative weight than the June 2011 opinion. Thus, the Board finds the competent medical evidence is at least in relative equipoise as to the question of whether the Veteran's hallux valgus is causally related to his service-connected hammer toes. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In light of the above, service connection for hallux valgus as secondary to hammer toes is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). With regard to the Veteran's foot disabilities other than hallux valgus, the weight of the probative evidence indicates that they were not incurred in, aggravated by, or related to the Veteran's active service. The negative VA opinions are uncontradicted, supported by rationales, and are consistent with the evidence of record. The Board acknowledges the Veteran's assertions of a link between his current foot disabilities and his military service; however the Veteran has not been shown to possess the medical expertise necessary to render an informed opinion on complex medical questions, such as that presented here. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the Board affords the VA opinions significantly more probative weight than the Veteran's assertions. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a bilateral foot hallux valgus as secondary to service-connected hammer toes is granted. Entitlement to service connection for a bilateral foot disability, other than hallux valgus and hammer toes with calcaneal spurs, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs